Mrs. Pamela Kumar vs Mr. Chandrashekhar and Others

Badar Durrez Ahmed, J.—The suit as well as the probate case have been instituted by Mrs. Pamela Kumar. Both the matters were heard

together on the preliminary issues framed therein. Since the facts are common to both the suit and the probate case, this common judgment shall

dispose of the preliminary issues in both the matters.

The suit is essentially one of partition and possession in respect of the property bearing No. 28, Fire Brigade Lane, New Delhi. Mrs. Pamela

Kumar (the plaintiff) claims a half share in the said suit property. On the basis of such claim she seeks a decree of partition and possession in

respect of the said half share as also mesne profits against the defendant No. 1 (Mr Chandrashekhar). The other defendants, namely, Mr Arun

Mohan (defendant No. 2), Mrs Lalita Steinmetz (defendant No. 3), Mrs Mala Goel (defendant No. 4), the Land and Development Office

(defendant No.6) and the District Judge, Tis Hazari (defendant No. 7) are not contesting defendants. The defendant No. 5 had been deleted vide

order dated 15.10.2001. In the suit the plaintiff ( Mrs. Pamela Kumar) has also sought a declaration that the decree dated 02.09.1966 in RFA

No. 140-D/1962 is null and void.

The probate case has been filed by Mrs. Pamela Kumar seeking probate of a purported Will of February 1954 alleged to have been executed

by late Mr Chandra Mohan Lal in favor of late Mr Radhe Mohan Lal. Late Mr Chandra Mohan Lal and late Mr Radhe Mohan Lal were brothers.

The defendant No. 1 (Mr Chandrashekhar) claims to be the adopted son of late Mr Chandra Mohan Lal and his wife late Mrs. Gomti Devi.

The facts of the suit as well as the probate case are common and are intertwined. Mrs. Pamela Kumar claims to be the half owner of the suit

property on account of her being the daughter of late Mr Radhe Mohan Lal, who in turn, according to her, derived title over the same because of

the purported Will of 1954 executed by his brother late Mr Chandra Mohan Lal in his favor. She also submits that the said Will of February 1954

is in the possession of her brother Mr Arun Mohan (defendant No. 2), who has chosen not to produce the same in collusion with Mr

Chandrashekhar (defendant No. 1).

On the other hand, the defendant No. 1, who is the contesting defendant in the suit, has claimed title over the entire suit property on the basis of

a registered Will dated 18.03.1954 executed by late Mr Chandra Mohan Lal whereby a life interest was granted in favor of his widow Mrs Gomti

Devi and thereafter the entire suit property was to devolve upon Mr Chandrashekhar. It appears that there was another prior Will executed by late

Mr Chandra Mohan Lal on 14.04.1953 by which the suit property was divided into two shares and was to devolve upon Mrs. Gomti Devi and the

defendant No. 1 (Mr Chandrashekhar) in equal measure. That Will was also a registered Will. However, the defendant No. 1 (Mr

Chandrashekhar) contended that the earlier Will stood revoked and cancelled by the subsequent Will of 18.03.1954. Therefore, the entire suit

property devolved upon him. It must be noted that there was litigation between Mr Chandrashekhar and Mrs Gomti Devi in respect of the said

Wills and the suit property. The nature of the litigations would become clear upon noting the chronology of events.

It is an admitted position that late Mr. Chandra Mohan Lal was the owner of the building standing on 28 Fire Brigade Lane, Connaught Place,

New Delhi. It is also admitted that late Mr. Chandra Mohan Lal had leasehold rights over the land. The lease was granted to late Mr Chandra

Mohan Lal on behalf of the President of India through the Land and Development Office (the defendant No. 6). Late Mr Chandra Mohan Lal had

executed an adoption deed on 26.02.1953 adopting Mr Chandrashekhar (who was the minor son of Mr Tara Chand Brij Mohan). The said

adoption deed was registered with the Sub-Registrar, Kashmere Gate, Delhi on 26.02.1953. It is, however, the case of the plaintiff that no

adoption as per Hindu religious rites and ceremonies was performed and that late Mrs Gomti Devi never accepted Mr Chandrashekhar as her son

and he continued to live with his biological parents. In other words, Mrs. Pamela Kumar (the plaintiff in the suit) while acknowledging the

registered adoption deed claims the same to be of no effect under Hindu law. On 14.04.1953, late Mr Chandra Mohan Lal executed a registered

Will bequeathing, inter alia, the suit property equally to his wife Mrs Gomti Devi and to his adopted son Mr Chandrashekhar.

Mrs. Pamela Kumar has alleged that another Will was executed by late Mr Chandra Mohan Lal sometime in February 1954 by which the suit

property was bequeathed in favor of late Mr Radhe Mohan Lal (the plaintiff''s father). This Will is disputed by the defendant No. 1

(Chandrashekhar). Mrs. Pamela Kumar has not been able to produce a copy of this Will though she has alleged that this Will has been suppressed

by her brother Mr Arun Mohan (the defendant No. 2) in collusion with Mr Chandrashekhar (the defendant No. 1). However, it is an admitted

position that this purported Will of February 1954 was unregistered.

On 18.03.1954 late Mr Chandra Mohan Lal by another registered Will bequeathed a life interest in the suit property in favor of his wife Mrs

Gomti Devi and thereafter the property in question was to devolve upon his adopted son Mr Chandrashekhar. The original Will dated 18.03.1954

is in Urdu. An English translation of the said will dated 18.03.1954 has also been placed on record. In this Will dated 18.03.1954, there is a

reference to the adoption and the registered deed of adoption dated 26.02.1953. This Will also contains a statement by the testator to the

following effect:

I revoke and cancel absolutely all my previous Wills and they will not be acted upon in any manner and shall be deemed to be void and of no

effect.

On 05.03.1955 Mr Chandra Mohan Lal passed away. On 22.03.1955 his widow (Mrs Gomti Devi) applied for a succession certificate in

respect of the shares left by late Mr Chandra Mohan Lal on the basis of the Will dated 18.03.1954. The said petition was registered as No.

110/1955 before the Sub-Judge, Delhi. On 01.06.1955 Mr Chandrashekhar filed a petition being No. 185/1955 in the Court of the Sub-Judge,

Delhi for grant of succession certificate with respect to the same shares left by late Mr Chandra Mohan Lal on the basis of the Will dated

14.04.1953. It is pertinent to note that notices of both the petitions for grant of succession certificate were issued to the close relatives of late Mr

Chandra Mohan Lal, which included his brother late Mr Radhe Mohan Lal. It is also noteworthy that late Mr Radhe Mohan Lal did not file any

objections or claimed any title in respect of the properties on the basis of the purported Will of February 1954, which is now being sought to be

set up by his daughter Mrs. Pamela Kumar.

In 1957, Mr Chandrashekhar filed a suit No. 50/1957 for partition of properties of late Mr Chandra Mohan Lal. Mrs. Pamela Kumar claims

that a succession certificate had been granted in 1957 in favor of her father late Mr Radhe Mohan Lal in respect of the suit property on the basis of

the Will of February 1954. This claim of Mrs. Pamela Kumar is without any basis as firstly, no such succession certificate has been produced and

secondly, a succession certificate is not granted in respect of immovable properties.

On 21.05.1962 the Sub-Judge, Delhi dismissed the suit for partition filed by Mr Chandrashekhar against Mr. Gomti Devi and upheld the

validity of the Will dated 18.03.1954 left by late Mr. Chandra Mohan Lal. This was followed by an order dated 05.06.1962 whereby succession

certificate was granted in favor of Mrs Gomti Devi in respect of the shares left by late Mr Chandra Mohan Lal. The said order was passed on the

basis of the Will dated 18.03.1954. The application for grant of succession certificate in favor of Mr Chandrashekhar was rejected.

Being aggrieved by the dismissal of the suit, Mr. Chandrashekhar filed an appeal in 1962 being RFA No. 140-D/1962. During the pendency

of the said appeal, a compromise was arrived at. An application (CM No. 3166-D/1966) was filed in the said appeal (RFA 140-D/1962) for

recording the compromise. On 02.09.1966 a Division Bench of this Court proceeded to record the compromise and disposed of the appeal in

terms of the compromise. The essential features of the compromise were that Mrs. Gomti Devi would remain in possession of the suit property as

life owner subject to the restrictions mentioned in the compromise deed. It was further provided in the compromise that on the death of Mrs Gomti

Devi, Mr Chandrashekhar would be entitled to enter into possession of the whole house as the full owner. The compromise also noted that all the

Wills made by late Mr Chandra Mohan Lal and Mrs Gomti Devi stand cancelled and would have no effect. It was also provided that the

applications for grant of succession certificate, both by Mrs Gomti Devi and Mr Chandrashekhar, had now become infructuous and the same be

dismissed as such. Accordingly, FAO Nos. 32-D to 35-D, which were in respect of orders passed on the succession certificate petitions were

allowed and consequently the original petitions for grant of succession certificates bearing Nos. 110/1955 and 185/1955 filed by Mrs Gomti Devi

and Mr Chandrashekhar respectively were also dismissed by the said order passed by the Division Bench. In the compromise terms it is also

clearly recorded that late Mr Chandra Mohan Lal was the adoptive father of Mr Chandrashekhar.

Mrs. Pamela Kumar has alleged that on 08.06.1974 her father Mr Radhe Mohan Lal executed a Will. A copy of the Will has been placed on

record by Mrs. Pamela Kumar in the probate case along with other documents filed on 15.05.2004. Without commenting on the authenticity of the

Will, it is clear that the purported Will dated 08.06.1974 itself does not carry any mention of the suit property (i.e., 28 Fire Brigade Lane, New

Delhi). On 12.06.1977, late Mr Radhe Mohan Lal also passed away. Letters of Administration were granted in favor of Mr Arun Mohan

(defendant No. 2 in the suit) in respect of the properties under the said Will dated 08.06.1974 of late Mr Radhe Mohan Lal. Notably, as

mentioned above, the suit property was not mentioned at all in the said Will. On 30.07.1984 Mrs Gomti Devi also passed away. Thereafter, Mr

Chandrashekhar initiated eviction proceedings against the tenant in the suit property. On 15.09.1998, the said tenant gave an undertaking before

this Court to vacate the property on or before 30.04.2000. In 1998 itself the suit as well as the probate case were filed by Mrs. Pamela Kumar.

During the pendency of the suit and the probate case Mrs. Pamela Kumar filed CM No. 451/2000 in the disposed of RFA 140-D/1962. This

application (CM 451/2000) was filed u/s 5 of the Limitation Act, 1963 seeking condensation of delay in recalling the order passed on 02.09.1966

in RFA No. 140-D/1962. The application had been filed 34 years after the passing of the order dated 02.09.1966 whereby the compromise

between late Mrs Gomti Devi and Mr Chandrashekhar had been recorded and the said RFA No. 140-D/1962 had been partly allowed. The said

application came up for hearing on 07.09.2000 before a Division Bench of this Court which dismissed the same in, inter alia, the following manner:

We have gone through the contents of the application and also the reply filed on behalf of Shri Chander Shekhar.

Needless to add that Smt. Gomti Devi, who was respondent No. 1 in the appeal and on whose behalf Smt. Pamela Kumar claims to acquire title

expired on 30.07.1984. No proceedings were taken by her during her life time seeking to set aside the compromise decree. It is also worthwhile

to notice that the applicant Smt. Pamela Kumar had on 21.10.1998 filed a suit (S. No. 2375/98) in the Original Side of this Court against Shri

Chander Shekhar and others seeking a declaration that the decree dated 2.9.1966 passed in RFA No. 140-D/62 was null and void for various

reasons. There is no Explanation offered even for the period from the date of filing of the suit for not filing the application seeking to set aside the

decree what to say for the period prior thereto. Decree was passed when Smt. Gomti Devi was alive. She did not take any steps for reviewing the

decree. An application (CM 265D/69) was filed by her for clarification. It was dismissed on 9.12.1969. Another application (CM. 14/71) was

filed by her for clarification. It was also dismissed on 28.4.1971. The application now moved by Smt. Pamela Kumar is not only not maintainable

but is hopelessly barred by limitation. Even otherwise there is no substance in what is stated by the applicant in the review application and on any

of the ground alleged the the decree, which was passed on 2.9.1966 cannot be recalled.

Dismissed.

CM Nos. 450/2000, 1342/2000 and 783/2000 all filed in RFA No. 140-D/1962 were also dismissed by the said order.

It is on the basis of the aforesaid facts and circumstances that the defendant No. 1 (Mr Chandrashekhar) has contended that the present suit

and the probate case are palpably barred by time and are in abuse of the process of this Court and both the suit and the probate case ought to be

dismissed on this ground alone. In view of these submissions the following preliminary issues were framed in the suit:

CS(OS) No. 2375/1998

Following preliminary issues are framed:

(1) Whether the suit is an abuse of the process of law?

(2) Whether the suit is barred by limitation on the pleadings as laid in the suit?

Parties clearly understand that the first issue would be decided in the context of the pleadings of the parties, certified copies of judicial orders

passed and as placed on record by defendant No. 1 as also the plea of the defendants that late Sh. Radhe Mohan Lal, predecessor-in-interest of

the plaintiff never laid any claim to the suit property and in said context, issue of abandonment by the predecessor-in-interest in respect of the suit

property would be covered.

Similarly, in the probate case, the following preliminary issues were framed:

Probate Case No. 20/1998

Following preliminary issues are framed:

(1) Whether the petition suffers from laches and if yes, effect thereof?

(2) What would be the effect of the petitioner not stating facts to show that her predecessor-in-interest namely, late Sh. Radhe Mohan Lal asserted

title, right or interest in the property in respect of which letter of administration is being issued?

Since the issue of limitation and/ or laches arises in both the suit and the probate case, I shall take up consideration of the same together.

Insofar as the suit is concerned, the prayer contained therein is with regard to possession of immovable property and/ or an interest therein based

on title. The relevant provision would be Article 65 of the Schedule to the Limitation Act, 1963, which prescribes a period of limitation of 12 years

and the time from which the period begins to run is when the possession of the defendant becomes adverse to the plaintiff. In the present case it is

an admitted position that the entire suit property belonged to late Mr Chandra Mohan Lal. He passed away on 05.03.1955. The defendant No. 1

(Mr Chandrashekhar) claimed title over the entire property on the basis of the Will of late Mr Chandra Mohan Lal executed on 14.04.1953. On

the other hand, Mrs Gomti Devi resisted the claim on the basis of the Will dated 18.03.1954 whereby she had a life interest in the same. The suit

filed by Mr Chandrashekhar (the defendant No. 1) was dismissed by the Sub-Judge, Delhi on 21.05.1962. The appeal filed there from being RFA

No. 140-D/1962 was ultimately disposed of by a compromise decree on 02.09.1966. As mentioned above, the essential feature of the

compromise was that Mrs Gomti Devi would remain in possession of the suit property as life owner subject to certain restrictions. However, on

her death, Mr Chandrashekhar would be entitled to enter into possession of the whole house as full owner. This is where the matter rests. Mrs

Gomti Devi passed away on 30.07.1984. Even in respect of the tenant in a portion of the suit property, Mr Chandrashekhar initiated eviction

proceedings after the death of Mrs Gomti Devi. In other words, Mr Chandrashekhar has been in possession of the suit property at least on and

from 30.07.1984 claiming complete ownership over the same. Even if the period prior to 30.07.1984 is ignored for the time being, the time from

which the period of limitation would begin to run would be 30.07.1984. The suit was filed in 1998 beyond the period of 12 years prescribed under

the Limitation Act, 1963. This is apart from the question as to whether Mrs Pamela Kumar has any right, title or interest in the suit property at all

because she claims her interest through her father late Mr Radhe Mohan Lal, who also passed away on 12.06.1977. Mr Radhe Mohan Lal never

laid any claim to the suit property during his life time although he was aware of the proceedings between the defendant No. 1 and Mrs Gomti Devi.

Thus, whether the starting point of limitation is computed from the date of death of Mrs Gomti Devi in 1984 or of Mr Radhe Mohan Lal in 1977,

the suit is hopelessly time barred.

Insofar as the probate case is concerned, Mrs Pamela Kumar is seeking Letters of Administration in respect of the purported Will of February

1954 alleged to have been executed by late Mr Chandra Mohan Lal. Although no specific period of limitation has been specified for moving an

application seeking Letters of Administration/ probate in respect of a Will, the principle of laches and inordinate delay would be clearly applicable.

The said Will was allegedly executed on or about February 1954. The probate case was filed in 1998. Late Mr Chandra Mohan Lal passed away

on 05.03.1955. Therefore, the probate case was filed 43 years after Mr Chandra Mohan Lal had passed away. It is, Therefore, clear that the

probate case also suffers from laches and cannot be entertained at this belated stage. This is apart from the question of merits.

Accordingly, issue No. 2 in the said suit is decided against the plaintiff and I hold that the suit is barred by limitation on the basis of pleadings as

laid in the suit. Issue No. 1 in the probate case is also held against the petitioner (Mrs Pamela Kumar) inasmuch as the probate case suffers from

laches. Both on the ground of limitation and on the ground of laches, the suit as well as the probate case are liable to be dismissed.

I now take up issue No. 1 in the said suit:- whether the suit is an abuse of the process of law? Before proceeding with the discussion on the

factual aspects of the present case, it would be relevant to note the following observations of the Supreme Court in the case of K.K. Modi Vs.

K.N. Modi and Others,

One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice

and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may

not be barred as resjudicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A

proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of

the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the

proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and

the Court from being wasted. undoubtedly, it is a matter of Courts'' discretion whether such proceedings should be stopped or not; and this

discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The

Court should be satisfied that there is no chance of the suit succeeding.

The above observations of the Supreme Court make it clear that a proceeding being filed for a collateral purpose or a spurious claim being made in

a litigation may, also, in a given set of facts, amount to an abuse of the process of the Court. The Supreme Court also observed that frivolous or

vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. In such a

situation, the Supreme Court observed that the Court has the power to stop such proceedings summarily so as to prevent the time of the public

and the Court from being wasted. There is no doubt that the discretion vested in the Court, as to whether or not proceedings should be stopped,

has to be exercised with circumspection. The guiding principle for the exercise of such discretion is that the Court should be satisfied that there is

no chance of the suit succeeding.

In the light of the aforesaid legal parameters, let me now examine the factual matrix of this case. Mrs Pamela Kumar has filed the suit, firstly, for

a declaration that the decree dated 02.09.1966 passed in RFA No. 140-D/1962 be declared null and void. It is reiterated that the said decree

dated 02.09.1966 was passed in an appeal by a Division Bench of this Court. The decree was based on a compromise entered into between the

defendant No. 1 (Mr Chandrashekhar) and Mrs Gomti Devi. During her life time Mrs Gomti Devi did not challenge the said compromise decree.

As noted above, Mr Radhe Mohan Lal, through whom Mrs Pamela Kumar claims title, did not stake any claim to the suit property although he

was aware of the proceedings between Mr Chandrashekhar and Mrs Gomti Devi. In fact, even in his Will of 1974, Mr Radhe Mohan Lal did not

make any specific mention of the suit property. Clause 20 of the said Will of 1974 makes a reference to properties not specifically mentioned in the

Will. The said clause reads as under:

If there is any other property belonging to me regarding which I have not made any Will in the above paragraphs, the same shall belong to the

person who is in possession of the same.

Even if the aforesaid clause is taken into account, Mrs Pamela Kumar cannot claim title because, firstly, Mr Radhe Mohan Lal never laid claim to

the suit property and Mrs Pamela Kumar, who is claiming title through him, cannot raise such a claim when the predecessor-in-interest himself did

not stake any such claim in the suit property throughout his life time. Secondly, Mrs Pamela Kumar was never in possession of the suit property

and at the time of death of late Mr Radhe Mohan Lal (in 1977), it was Mrs Gomti Devi who was in possession of the suit property in terms of the

decree of 02.09.1966 passed in RFA No. 140-D/1962. Therefore, in any way the matter is looked at, Mrs Pamela Kumar cannot raise any claim

to the suit property.

The most important circumstance which comes in the way of Mrs Pamela Kumar is the fact that the decree of 02.09.1966 remained

unchallenged for over 32 years till the filing of the suit by her. Moreover, Mrs Pamela Kumar''s application filed in the disposed of RFA No. 140-

D/1962 has also been dismissed by a Division Bench of this Court on 07.09.2000 wherein it has been clearly recorded that her application was

hopelessly barred by limitation. The Division Bench also went on to hold:

Even otherwise there is no substance in what is stated by the applicant in the review application and on any of the ground alleged the the decree,

which was passed on 2.9.1966 cannot be recalled.

In other words, the compromise decree dated 02.09.1966 stands. Unless and until the said compromise decree was set aside, the plaintiff would

have no occasion to raise any claim in respect of the suit property. As such, in my opinion, there is no chance of the suit succeeding. The suit is,

Therefore, in my opinion based on a spurious claim and would amount to a frivolous or vexatious proceeding. That being the case, it would fall

within the parameters indicated by the Supreme Court in the case of K.K. Modi (supra) of an example of an abuse of the process of Court.

Consequently, this Court has power to stop further proceedings in the suit summarily so as to prevent further wastage of public time as well as the

time of the Court. Accordingly, issue No. 1 in the suit is held against the plaintiff inasmuch as the suit is an abuse of the process of law. On this

ground also the suit is liable to be dismissed summarily.

This leaves the discussion with respect to issue No. 2 in the probate case. The issue pertains to the effect of the petitioner not stating facts to

show that her predecessor-in-interest, namely, late Mr Radhe Mohan Lal, asserted right, title or interest in the suit property. This issue has partially

been discussed above while discussing other issues. Mrs Pamela Kumar claims title over the suit property through her father late Mr Radhe Mohan

Lal. Her lineage of title is through the Will executed by late Mr Radhe Mohan Lal in 1974 and traced up to the Will of late Mr Chandra Mohan

Lal, which was purportedly executed in February 1954. It is Therefore, her claim that late Mr Chandra Mohan Lal executed a Will in February

1954 in favor of her father late Mr Radhe Mohan Lal, who in turn executed a Will in 1974. However, it must be noted that the purported Will of

February 1954 stood cancelled and / or revoked by the subsequent registered Will of 18.03.1954, which Will is admitted by all parties.

Furthermore, late Mr Radhe Mohan Lal did not make any specific mention of the suit property in his Will of 1974. The residuary Clause 20 in the

Will also does not help Mrs Pamela Kumar, as already indicated above. The clear and admitted position is that late Mr Radhe Mohan Lal never

asserted any right, title or interest in the property in question. This fact ought to have been disclosed by Mrs Pamela Kumar in her petition.

However, without going into the question as to whether the non-disclosure of this fact would by itself be fatal to the petition or not, it is apparent,

for more reasons than one, that the probate case cannot be continued. First of all, the petition suffers from laches, as already indicated above.

Secondly, the petition would be an exercise in futility because even if it is assumed that late Mr. Chandra Mohan Lal left a Will executed in

February 1954, the same would have no effect because of the subsequent Will of 18.03.1954 revoking and cancelling all prior Wills.

In view of the aforesaid discussion and the findings returned on the preliminary issues, the suit as well as the probate case are dismissed with

costs.